Health Services Union v Department of Human Services East Division

[2014] FWC 3977

[2014] FWC 3977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Health Services Union
v
Department of Human Services East Division
(C2014/543)

DEPUTY PRESIDENT SMITH MELBOURNE, 18 JUNE 2014

Alleged dispute regarding stand down.

Introduction

[1] Mr Stephen Whyte and Mr Troy Williams are both Disability Development and Support Officers in a group home administered by Disability Services of the Department of Human Services (DHS). On 6 March 2014 both employees were stood down on full pay to allow an investigation to take place on a complaint made by a resident.

[2] Following an investigation DHS wrote to each of the employees and advised that the concerns originally expressed by a resident would not be taken any further. However DHS stated that in line with its duty of care to employees and residents it had decided to relocate both employees. There was no finding of any wrongdoing against the two employees.

[3] Both Mr Whyte and Mr Williams, through their union, the Health and Community Services Union (HACSU) submitted that there was no power to stand down employees except in circumstances where it is a part of a disciplinary process and, in addition, both employees should not be transferred to other homes but be returned to the residence from which they came.

[4] This decision deals with:

• The ability of the employer to stand-down or suspend employees other than in accordance with Schedule C, and



• The ability of the employer to transfer an employee.

The agreement and submissions

[5] The relevant aspects of the HACSU Department of Human Services Disability Services Enterprise Agreement 2012—2016 [AE899811] (the Agreement) begin with Schedule C—clause 3.1.1. This provides:

Within one (1) business day of an employee being notified of an allegation against them which may constitute misconduct or serious misconduct, and where the Employer suspends or transfers the Employee on pay, the Employee will be provided with a broad indication of the allegation/s including the date of the incident

[6] I don’t need to travel too far on this aspect as it is clear that if the Department is notified of an allegation which may constitute misconduct or serious misconduct it may suspend or transfer. This is completely understandable given the need to protect both the employee and residents. There does not have to be a finding of misconduct only an allegation which may constitute misconduct.

[7] I am not content that the suspension with pay has been appropriately handled and this is something that DHS should examine for the future but, in any event, both employees were notified on 4 April 2014 advising them that there was no process being pursued under Schedule C. The suspension from that date does not appear to be supported by the Agreement.

[8] I now turn to the ability or otherwise for DHS to transfer an employee which does not form part of a disciplinary process. From the time that DHS advised that it was not a disciplinary process, and the proposed relocation was made known, it was argued by HACSU that clause 13.2.2 of the Agreement was enlivened. That clause provides:

Whilst a dispute or grievance is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to his or her health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

[9] From at least 4 April when the employees were advised that there was no process being pursued under Schedule C, HACSU argued that the employees should have been able to continue work in their current location as the Agreement provides thatwork must continue in accordance with usual practice where the action of the employer is in dispute. The matter was notified to the Commission on 3 April and listed on 29 April. HACSU ask me to make an interim order requiring DHS to return the two employees to their usual place of work.

[10] DHS argue that if the original dispute was about the Schedule C process then that matter has concluded. It stated that there is no Schedule C process being undertaken. DHS drew on the dispute settlement clause of the Agreement which provides at 13.1.1:

Unless otherwise provided for in this Agreement, a dispute or grievance about a matter arising under this Agreement or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute or grievance about whether an Employer had reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.

[11] DHS argues that unless a dispute can be characterised as one arising under the agreement then the Commission has no power to deal with the matter. It argues that relocation matters are not prescribed by the Agreement and such matters arise under the Public Administration Act 2004 (Vic).

Conclusion

[12] I do not propose to make any interim order in relation to the argument that the two employees should be returned to the “usual place of work”. I am in a position to make a final decision. To begin, I strongly recommend to the parties that they meet and discuss the processes for standing employees aside when an allegation is made against them. There is power under the Agreement to suspend or transfer in circumstances where an allegation or misconduct or serious misconduct is alleged. However, in the present matter there was not a clear picture for the employees to understand, instead they believed that action was being taken against them through no fault of their own.

[13] As to whether or not the Commission can determine a dispute about a transfer in circumstances not covered by the Agreement when the dispute settlement clause limits its power, the answer must be no. It is trite law that the power of the Commission in this regard is decided by the terms of the Agreement. 1 Given that I am not making an interim order I do not need consider the argument raised by HACSU that the disputes procedure covers the field and displaces the power that might otherwise vest with the employer in relation to transfers.

[14] As a consequence of the finding that the general power to transfer is not comprehended by the Agreement, then the Public Administration Act 2004 (Vic) operates in accordance with its terms.

DEPUTY PRESIDENT

Appearances:

M. Harding of Counsel and K Douglas for the Applicant

S. De Pedro, J. Cooney and M. Bongiorno for the Respondent

Hearing details:

2014.

Melbourne:

May, 13

 1   See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Codelfa v State Rail Authority (NSW) (1982) 149 CLR 337; Kucks v CSR Limited (1996) 66 IR 182

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